Life and the Elections

Interview With Legal Expert Clarke Forsythe

November 20, 2008
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By Karna Swanson

CHICAGO, Illinois, NOV. 20, 2008 (Zenit.org).- While the economic crisis and war in Iraq were top priorities for voters in November's elections, there is nothing to indicate that Americans are less pro-life than before, says a legal expert for Americans United for Life.

Clarke Forsythe, Senior Counsel with Americans United for Life (AUL), spoke with ZENIT to put the 2008 election results in the context of 35 years of progress for the pro-life movement.

He also discusses the possible challenges life issues will face during the presidency of Barack Obama.

Q: Pro-life issues and candidates took a beating at the ballot box on Nov. 4? How extensive were the losses, and to what do you attribute the lack of success?

Forsythe: It is very difficult to keep pro-life and other issues of justice at the center of public life in the midst of war and economic crisis. William Wilberforce's campaign against the slave trade in Great Britain during the 1790s -- which was derailed by the French Revolution, war with France, economic crises and terrible harvests -- is a good example. But Wilberforce (and his allies) persevered and things turned around over considerable time.

I haven't seen any data which would indicate that Americans voted "against pro-life" nationally, and I have seen references to data that tend to indicate that President-elect Obama's win was more personal than partisan or Democratic. The size of his victory was not large, and there is data suggesting that his "coat-tails" were not long.

The ballot initiatives that lost were local issues, fought out on the local level, and they depended on factors particular to each state -- political background, public opinion, grassroots strength and organizing, financial resources, the impact of last-minute advertising.

The primary national issue was the economy, and the presidential race turned in the last 6-8 weeks after the housing and credit collapse. I haven't seen any data that would indicate that any significant number of Congressional candidates or state candidates lost because they were pro-life or identified with pro-life.

Q: The pro-life position on two measures concerning the embryo failed: Colorado rejected the Human Life Amendment, which would have given the embryo the status of a "person," and Michigan approved destructive research on human embryos. Going forward, what steps must now be taken to seek the protection of human embryos?

Forsythe: While the "embryo" had a connection to both, the two measures were completely different, and the reasons why they lost in Colorado and Michigan were local to each state, and the margin of loss was dramatically different in the two states. The particular reasons for the loss in each state have to be thoroughly evaluated.

The Colorado Human Life Amendment was offered by pro-lifers and was broad and abstract and lost by a huge margin. The Michigan embryonic stem initiative was offered by proponents of embryonic research and won by a narrow margin. Colorado did not have a record of political success or pro-life success that would have supported the idea to propose a Human Life Amendment.

The basic question, whether state ballot initiatives are a viable means to successfully promote pro-life issues and successfully secure legal protection for human life, needs to be asked and thoroughly evaluated. The basic prudential factors -- using wise judgment as to what's possible in the circumstances and effectively connecting means and ends -- must be asked and evaluated.

There can and will be legislative and legal efforts in 2009 to secure legal protection for embryonic human beings in the states. In the drive to prevent embryonic research, it will be essential to effectively educate on the success of adult stem-cell research -- and research with induced pluripotent cells (IPCs) -- and the relative failure of embryonic research. That will take time.

Q: Voters in South Dakota rejected a ban that would have made abortion, with few exceptions, unconstitutional, and California voters rejected a parental notification act. Are states having a harder time passing limits on abortion?

Forsythe: Let me briefly summarize what has been achieved. Despite tremendous obstacles -- including adverse decisions from the U.S. Supreme Court -- the cause for life in the United States has made significant progress over the past 35 years in limiting abortion, narrowing the scope of the Supreme Court's 1973 decision in Roe v. Wade legally, increasing legal protection for the unborn (outside the context of abortion), and raising doubts about abortion.

Roe is threatened in 2008 because of the make-up of the Supreme Court and because of momentum created over the past 35 years. There has been a 25% drop in abortions since 1992. Abortion is understood to be the taking of human life. Legislative fences have been erected that significantly reduce abortions. These include:

-- Approximately 40 states have physician-only laws (limiting abortion practice to physicians);

-- 32 states follow the funding limitations of the federal Hyde Amendment, while 17 states provide broader funding for abortion;

-- 36 states have passed informed consent laws;

-- 36 states have passed parental involvement laws;

-- 47 states have passed laws to protect rights of conscience;

-- 22 states have passed abortion clinic regulations;

-- 16 states have passed ultrasound laws.

In addition, legal protection for developing human life outside the context of abortion has grown since 1970: There are now fetal homicide laws in 36 states that treat the killing of an unborn child as a homicide and there are wrongful death laws in at least 38 states that allow a civil suit for killing an unborn child at some point of gestation. These laws have limited abortion and serve to marginalize abortion as the outstanding (if not the sole) area in which unborn children are not legally protected.

In addition, as the Supreme Court's 2007 decision in the Gonzales v. Carhart case (upholding the federal partial birth abortion law) demonstrates, the majority of the Roberts Court is skeptical about abortion (if still not "pro-life"). The public is skeptical about most abortions. Legal, social, and economic pressure on abortion providers has grown. A much stronger national network of pregnancy care centers exists in 2008 than existed in 1973. A growing body of medical studies shows the medical risks of abortion for women.

These are means and ends questions. Given state legislative progress, the question has to be addressed, state by state, whether ballot initiatives are the most promising means. The prospects for success in each state need to be carefully analyzed before launching a ballot initiative, including public opinion, financial resources, organizational resources, grassroots organization and networking, financial resources for advertising, and the prospect of success via alternative means.

Q: On the national scene, the American people elected as president Barack Obama, who is a supporter of Roe v. Wade and abortion rights. Does this, along with the other losses on the state level, indicate a shift in the United States away from being pro-life?

Forsythe: The election of Barak Obama alone does not, and the state ballot initiatives were decided on issues unique to each state. As mentioned above, the driving issue was the economy, and the election turned in the last 6-8 weeks due to fear surrounding the housing and credit collapse.

The real surprise is that, with public anxiety over the Iraq war and the economy, President-elect Obama didn't win by 15 or 20 points.

It will take more than this one presidential election to indicate any "shift." It will be important to look at what Congress and the states do legislatively in 2009-2010 and what happens in the national elections in 2010. States will be moving ahead with pro-life legislation in January 2009. Let's see in June 2009 what the Congress has done and what the states have done.

Q: Obama told Planned Parenthood in 2007 that if he were elected president, he would sign into law the Freedom of Choice Act, which would invalidate restrictions on abortions in nearly every state. How likely is it that the president-elect will follow through on this election promise? What would be the impact of FOCA?

Forsythe: Based on his statement in 2007 that FOCA would be the "first thing" that he would sign, we have to presume that President-elect Obama will make it a priority in 2009, while working intensely to see that it does not pass Congress and does not get to his desk for him to sign.

As a federal statute under the Supremacy Clause of the U.S. Constitution, the so-called Freedom of Choice Act (FOCA) would declare abortion to be a "fundamental right" at every stage of pregnancy and would, thereby, specifically invalidate any "statute, ordinance, regulation, administrative order, decision, policy, practice, or other action" of any federal, state, or local government that would "deny or interfere with a woman's right to choose" abortion, or that would "discriminate against the exercise of the right [...] in the regulation or provision of benefits, facilities, services, or information."

The language of FOCA is clear and absolute. FOCA would compel state and federal public funding of abortion on demand and invalidate every state, federal and local regulation on abortion and abortion practice enacted over the past 35 years, including all limits on partial birth abortion, all parental involvement laws, and all laws protecting rights of conscience relating to abortion.

So, we're extremely concerned about FOCA, though encouraged by the 200,000 who have so far signed our FightFOCA petition at www.fightFOCA.com.

Q: Many Christians who voted for Obama said they support him because he is the "real pro-life president," citing his stance against the war in Iraq, and his commitment to reduce poverty and help those struggling in a tough economy. Do you think President-elect Obama could be considered a pro-life president?

Forsythe: President-elect Obama ran on an explicit pro-abortion platform and had a very strong pro-abortion record as a state senator in Illinois, and then as a U.S. senator. His promise to Planned Parenthood in 2007 that "the first thing" he'd like to do as president is "sign the Freedom of Choice Act" speaks volumes.

He has also committed (a litmus test) to appoint justices to the U.S. Supreme Court who will read the principles of FOCA into the U.S. Constitution and thereby impose FOCA, permanently, on the entire country as federal constitutional law. Whether he can be considered a pro-life president will have to await his record as president and whether he follows through on these pro-abortion promises and commitments. I'd be surprised if he doesn't.

Abortion is an intentional act and an intrinsic evil and therefore dramatically different from the prudential options regarding just wars, social welfare and economic policies. Data suggest that state regulations on abortion have produced the 25% drop in abortions since 1992 and would seem to be more valuable than simply increasing governmental spending to reduce abortions in the future.

We hope that President-elect Obama will focus on really essential priorities and leave the pro-abortion commitments and promises behind, but we will have to work extremely hard to see that such pro-abortion policies do not become law.